July 23, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Arbitrator John Wilson
Date of Decision: May 23, 2012
REASONS FOR DECISION
Karl Luther was injured in a motor vehicle accident on May 28, 2007. He applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule. Economical arranged for a further section 42 examination of Mr. Luther on the issue of income replacement benefits on December 11, 2008.
At the time and date scheduled for the examination, Mr. Luther attended at the assessment facility on time, ready to proceed with the examination. The assessment did not take place however. Mr. Luther, on the advice of his lawyer, refused to sign the consent forms put forward by the facility and the assessors. Without the specific signed forms demanded by the assessors, the assessors refused to proceed with the assessment.
Economical terminated weekly income replacement benefits on the basis of non-attendance at a section 42 examination. While ultimately assessors were found who would proceed under a modified consent form agreed to by the parties, and benefits subsequently reinstated, a dispute continued over the payment of funds withheld between December 11, 2008 and September 30, 2009, the dates of the stoppage related to the abortive assessment.
It should be noted that the substantive entitlement of Mr. Luther to income replacement benefits is not at issue, and, indeed, Economical continues to pay those benefits on an ongoing basis.
The parties were unable to resolve their disputes through mediation, and Mr. Luther applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act. The issues in this hearing are:
Was Mr. Luther in breach of section 37(7) of the Schedule in that he failed to attend at an examination scheduled under section 42 of the Schedule?
Mr. Luther was not in breach of section 37(7) of the Schedule in that he made himself available for his assessment and attended on time and ready to consent verbally and by counsel to the proposed assessments. His failure to sign an unapproved "consent" form, in the context of these examinations, does not constitute a "failure to attend."
EVIDENCE AND ANALYSIS:
Section 42(10) of the Schedule in effect at the time of the examination reads as follows:
(10) For the purposes of the examination,
(a) the insured person and the insurer shall, within five business days after the day the notice of the examination under subsection (4) or (7) is received by the insured person, provide to the person or persons conducting the examination all reasonably available information and documents that are relevant or necessary for the review of the insured person's medical condition; and
(b) if the attendance of the insured person is required at the examination, the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.
Section 37(7) of the Schedule states:
(7) If the insured person fails or refuses to comply with subsection 42 (10), the insurer may,
(a) make a determination that the insured person is no longer entitled to the specified benefit; and
(b) despite subsection (9), refuse to pay specified benefits relating to the period after the insured person failed or refused to comply with subsection 42 (10) and before the insured person submits to the examination or provides the material required under that subsection.
(8) If the insured person subsequently complies with subsection 42 (10), the insurer shall,
(a) reconsider the insured person's entitlement to the specified benefit and make a determination;
(b) subject to the insurer's determination, resume payment of the specified benefit; and
(c) pay all amounts, if any, that were withheld during the period of non-compliance if the insured person provides not later than the 10th business day after the failure or refusal to comply, or as soon as practicable after that day, a reasonable explanation for not complying with subsection 42 (10).
As noted earlier there is no question that Mr. Luther physically attended the assessment and was ready to proceed with the examination. The Insurer, however, has taken the position that a refusal to sign the consent forms in effect stymied the examination. The examination could not proceed without consent. Therefore, the attendance itself was meaningless without the signed consent forms and Mr. Luther could therefore be said to have failed to make himself available for the scheduled examination.
Mr. Luther submits that he was present and he had consented to the examination, whether through his lawyer, or verbally, but that on his lawyer's advice he was not in a position to sign the particular consent forms proffered by the assessment company and the individual assessors.
Mr. Luther also took the far-reaching position that in a section 42 examination mandated by the Schedule, written consents were superfluous and not required.
This position was supported by reference to Chapell v. Marshall Estate (2001)’ and Tanguay v. Brouse (2002), cases involving defence medicals under the Courts of Justice Act, which stood for the proposition that in court ordered examinations, patient consents were not required.
The issue of consent as it relates to an insurer's examination is complex. Generally, the medical practitioners who perform most of the examinations draw their own information and standards from the world of medical practice.
The Health Care Consent Act (HCCA), which codifies the need for informed consent, states its purpose at section 1(a) as follows:
1. The purposes of this Act are,
(a) to provide rules with respect to consent to treatment that apply consistently in all settings;
At section 10, the Act sets out the following proposition:
10.(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,
he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or
he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in accordance with this Act.
In addition, at section 2(1) the HCCA attempts to define what constitutes treatment requiring consent under the Act:
"treatment" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include,
(a) the assessment for the purpose of this Act of a person's capacity with respect to a treatment, admission to a care facility or a personal assistance service, the assessment for the purpose of the Substitute Decisions Act, 1992 of a person's capacity to manage property or a person's capacity for personal care, or the assessment of a person's capacity for any other purpose,
(b) the assessment or examination of a person to determine the general nature of the person's condition,
(c) the taking of a person's health history,
(d) the communication of an assessment or diagnosis,
(e) the admission of a person to a hospital or other facility,
(f) a personal assistance service,
(g) a treatment that in the circumstances poses little or no risk of harm to the person,
(h) anything prescribed by the regulations as not constituting treatment.
Having defined "assessment or examination of a person to determine the general nature of the person's condition" as an excluded act, and not subject to the consent provisions of the HCCA, the Act goes on to provide the following cryptic qualifier at section 3(2):
Excluded act considered treatment
3.(2) If a health practitioner decides to proceed as if an excluded act were a treatment for the purpose of this Act, this Act and the regulations apply as if the excluded act were a treatment within the meaning of this Act.
Thus, according to the HCCA, an assessment or examination does not require compliance with the consent rules under the Act unless the health practitioner proceeds as if the Act applied.
Whether or not consent in accordance with the HCCA is required for any assessment, consent, at common law, is also an issue. It should be noted that one of the activities undertaken in the assessment was to be a functional abilities evaluation (FAE).
An FAE by its very nature is challenging and may cause an individual to feel pain, and possibly more serious consequences. Likewise for the physiatry assessment, Dr. C's consent form indicates that "some parts of the Physical Examination may cause you to feel pain" and that "on a few occasions, the movement will be passive - that is, Dr. C will move a relaxed joint."
However much they may be minimized, it is clear that examinations may involve both pain and touching. In the absence of consent, or other legal justification, at common law a battery would take place.
The Supreme Court has dealt at length with the issue of non-consensual contact. In Reibl v. Hughes, dealing with battery, Laskin C.J. stated that:
[the] tort [of battery] is an intentional one, consisting of an unprivileged and unconsented to invasion of one's bodily security. [Reibl v. Hughes, 1980]
La Forest J., in Norberg v. Wynrib (1992), has described battery as follows:
A battery is the intentional infliction of unlawful force on another person. Consent, express or implied, is a defence to battery. Failure to resist or protest is an indication of consent "if a reasonable person who is aware of the consequences and capable of protest or resistance would voice his objection": see Fleming, The Law of Torts (7th ed. 1987), at pp. 72-73. However, the consent must be genuine; it must not be obtained by force or threat of force or be given under the influence of drugs. Consent may also be vitiated by fraud or deceit as to the nature of the defendant's conduct.
Likewise, Iacobucci J., in Non-Marine Underwriters v. Scalera (2000), has observed:
If one accepts that the foundation of the tort of battery is a violation of personal autonomy, it follows that all contact outside the exceptional category of contact that is generally accepted or expected in the course of ordinary life, is prima facie offensive.
It has long been accepted that battery can be found to have been committed "even though no harm or insult is intended by the contact and even when it is done to assist another." (M v. Toronto Board of Education et al.)
It can be seen then that, whatever the professional guidelines may state, health professionals may reasonably fear negative consequences if they perform a medical-legal examination without having obtained consent or otherwise being relieved of the need to obtain consent by action of law.
In this matter, drawing from case law relating to defence medicals under the Courts of Justice Act, counsel for Mr. Luther has advised the Insurer and its assessors that a written consent is redundant since by action of law, the examination is mandatory.
While an insurer's examination draws its authority from section 42 of the Schedule, the court's authority to order physical or mental examinations of a party to a proceeding by a health practitioner, as defined, is contained in section 105 of the Courts of Justice Act (CJA) and Rule 33 of the Rules of Civil Procedure.
Like section 42, Rule 33.08 allows a defence medical on consent without the obtaining of an order. Unlike section 42, section 105 allows for an order forcing a party to submit to an examination.
As noted, counsel for Mr. Luther relied on a series of decisions by Valin J. to stand for the proposition that a plaintiff, who has been ordered to attend a defence medical examination under section 105 of the Act, is not required to sign any authorization, consent or agreement form demanded by the examining health practitioner.
In Chapell v. Marshall Estate, Valin J. concluded:
There is no requirement in s. 105 of the Act or in rule 33 of the Rules of Civil Procedure requiring an injured plaintiff to sign an authorization, consent or agreement when attending a defence medical examination ordered pursuant to s. 105 of the Act.
Valin J. elaborated:
There appears to be a misunderstanding of the role of the examining doctor or other health practitioner. In conducting a defence medical examination, a doctor or other health practitioner is not operating within the bounds of the traditional doctor-patient relationship where the doctor has been engaged by the patient whose trust and confidence in the doctor are essential to their relationship. Instead, the defence medical examination takes place in the context of an ongoing legal dispute where the examinee's adversary has retained the examining health practitioner. The examining health practitioner is not subject to the usual confidentiality requirements which are essential to the doctor-patient relationship. Indeed, the examining health practitioner's very purpose is to report his/her findings to the examinee's adversary: Bellamy v. Johnson (supra) per Doherty J.A. at p. 598.
The section 42 provisions of the Schedule read as follows:
42.(1) For the purposes of assisting an insurer determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, an insurer may, as often as is reasonably necessary, require an insured person to be examined under this section by one or more persons chosen by the insurer who are members of a health profession or are social workers or who have expertise in vocational rehabilitation.
By contrast, section 105(2), which sets the stage for defence medicals, is much more concise:
(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners. (CJA)
While section 105 refers to the court ordering a person to undergo an examination, section 42 merely speaks to requiring a person to be examined. Both sections speak to an obligation to undergo examinations, but there is a qualitative difference between the order of a court to do something and a mandatory request under a contact of insurance issued by a private, commercial entity, such as an insurance company.
The Criminal Code at section 672.11 also provides for mandatory assessments in certain cases. A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(a) whether the accused is unfit to stand trial;
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);
(c) whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;
(d) the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused; or
(e) whether an order should be made under section 672.851 for a stay of proceeding, where a verdict of unfit to stand trial has been rendered against the accused.
Like the CJA and the Schedule, there is no specific wording either requiring a person being assessed to consent, or specifically exempting mental assessments from the consent process. It is unlikely in the least that many accused being assessed for capacity to stand trial or otherwise would be willing or able to provide informed consent for the procedure. Clearly the court order under section 672.11 is sufficient to allow the examination to happen.
It has long been held that arbitrators may not compel attendance at insurer's examinations. Whether this difference is due to the statutory forum which does not specifically clothe arbitrators in all the powers of a section 96 court, or to the nature of section 42 itself is unclear from the jurisprudence.
Neither provision, however, either authorizes or orders the person undergoing the examination to execute consents to permit the examination to take place. Valin J. believes that this absence means that there is no authority to compel someone to execute consents under section 105. Counsel for Mr. Luther believes that the same analysis extends to section 42 examinations.
The Arbitrator disagreed. Unlike a court order where the penalty for disobedience, however unlikely in this circumstance, is prosecution for contempt of court, or the striking of pleadings, the penalty set by the Schedule is simply the suspension of benefits until such time as the person makes him or herself reasonably available for an examination.
Relying on Arbitrator Leitch's analysis in Paul and Dominion (February 7, 2007), Economical asserts that the refusal to sign consents frustrated the examinations and made them impossible to conduct. As such, the insured did not attend with the intention of undergoing an examination, but rather to frustrate the process. In Paul, arriving some 45 minutes after a scheduled orthopaedic examination, and some 5 hours late for an all-day psychological evaluation did not constitute attendance as required by the Schedule. One could call this constructive non-attendance, since the lateness was such as to thwart the examinations.
In Binns v. Skinner Estate (2000), Macdonald J. found that because medical assessments conducted by the accident benefits insurer are admissible as evidence in a tort action, the medical examination provisions of the Insurance Act and the Schedule on the one hand and section 105 of the CJA and Rule 33 of the Rules of Civil Procedure should be given "compatible interpretation." [See note 11 below]
While the practical limits of compatibility may be tested by the choice of forum, with arbitrators lacking the jurisdiction and powers of courts, the purpose of the two sections also determines their interpretation.
Section 42 examinations took place in the context of a first-party scheme in which the examination is in aid of the determination of benefits in situations where for the most part there is no presumption of an adversary relationship. Section 105 examinations are specifically contingent on there being a dispute before the courts where some aspect of the health of an individual has been put into question.
It is not inconsistent for a provision specifically aimed at assisting an insurer to determine entitlement to benefits, to have different attributes from a provision extending the discovery principle in litigation to the provision of medical examinations.
Given the differing characteristics and goals of section 42 examinations and those under the Courts of Justice Act, the Arbitrator does not accept that it is obvious that Valin J.'s approach must apply without modification to section 42 examinations. The Arbirator noted that both Chapell and Tanguay deal with orders to be examined. In such cases, the rationale of no consent makes sense. Lack of consent does not invalidate such a mandatory order.
The absence of a court or arbitral order in a section 42 examination, however, must give health practitioners pause for concern.
Given the common law strictures in the Health Care Consent Act, not to mention the Personal Health Information Protection Act, 2004, it is unrealistic to expect a medical practitioner to conduct an examination, without casting his or her mind to the authority under which it is undertaken and whether specific consent may be necessary for the examination and the provision of its results and observations to a third party.
The policies of the College of Physicians and Surgeons, the Canadian Medical Protective Association (CMPA) and others referred to in Dr. A’s affidavit would only heighten the concerns that an examiner might have. In the absence of a specific clause in the Schedule outlining the responsibilities of examiners, or of a court order mandating an examination, the Arbitrator accepted that it is reasonable for an examiner to ask for a generalized consent before undertaking a section 42 examination and to document that process. Consequently, the Arbitrator was unwilling to make any broad declaration that Chapell v. Marshall Estate and Tanguay v. Brouse govern the issue of consent in all section 42 examinations.
That, however, is not what is really at issue here. What matters is whether Mr. Luther made himself available for specific section 42 examinations or whether he contumeliously frustrated the examinations through his refusal to sign the proffered consents.
In terms of legal context, it is important to note that the Insurer is relying on this alleged contravention of the Schedule, to justify the non-payment of income replacement benefits for the period until the examinations took place.
What is at issue is not a generalized principle about signing consents, but whether Economical has established that Mr. Luther is in breach of his obligations under sections 42 and 37 of the Schedule as it read at the time.
As such, any decision must turn on the facts of this case.
Firstly, responsibility for the selection and the arrangement of section 42 assessments lies with an insurer. Since the demise of Designated Assessment Centres, there is no longer a quasi-independent framework for examinations to take place. In practice, it seems that insurers including Economical delegate the work of hiring assessors and setting up assessors to commercial organizations who co-ordinate assessments. In this case, the organization was SIMAC.
While no witnesses from SIMAC were called, certain documents including the proposed consents Mr. Luther was asked to sign were in evidence.
There seems to be no dispute that when Mr. Luther presented himself for assessment, he was prepared to provide verbal consent to proceed. Likewise, there is no dispute that his counsel had written a letter indicating that consent was given for the assessments.
What held up the process was Mr. Luther's refusal to sign the specific consents proffered by the examiners.
The general SIMAC consent is one page only and consists of seven clauses. The first is a simple acknowledgement that consent is given for an FAE "as explained to me." Others confirm the criteria for the test and the understanding that the process can be stopped by the examinee at any time. Another clause refers to the collection and diffusion of information gathered in the FAE. The last clause, however, has little to do with consent. Rather, it is what generally would be regarded as an exculpatory clause. It reads:
That I hereby release it's [sic] agents, officers and employees from any liability with respect to any injury that I may suffer during the administration of the Functional Capacity Evaluation, except where the injury is caused by the negligence of it's [sic] agents, officers and employees acting within the scope of their duties. [emphasis in original]
While it is in the interests of SIMAC to be relieved of the consequences of intentional and other injury caused by its assessments, it is understandable that Mr. Luther's counsel was wary of having his client sign such a "consent."
The other forms by Drs. C and D are more informative about the process, and less exculpatory, but each followed a different format. There was no uniformity.
As both the common law and the Health Care Consent Act recognize, consent can be delivered in a variety of ways, both oral and written. From the point of view of "papering" the consent process, there are advantages to written consent. There are, however, other ways of documenting that consent has been obtained including contemporaneous notation in written records, witnesses, or a transcript either written or electronic of the consent process. Each has its advantages and disadvantages. None is infallible.
Mr. Luther did consent to the examinations, just not in the manner demanded by the assessors.
It is startling that each consent form offered appears to differ widely from the next. Given that it is under the Insurer's authority that assessments are conducted, it is surprising that an insurer does not insist in some conformity of approach to consent as well.
In this matter, the consent issue was front and centre before the examination took place. The Insurer should have realized that the "consent" required by SIMAC at least, with its exculpatory clause, was inappropriate to a mandatory examination by professionals vetted only by the Insurer, if at all.
As well, given that an insurer chooses, hires and pays the assessors, and is ultimately responsible for the assessment, the Arbitrator was surprised that Economical was unable to work out something with its assessors to provide an alternative means of consent when the issue arose.
It was also clear that Mr. Luther and his counsel were willing to work with Economical to find an acceptable consent process, and proceed with the examinations.
The fact that ultimately assessors were found who would perform the assessment under modified assessments suggests that Mr. Luther did not ask for the impossible. The Arbitrator did not believe that he can be seen as obstinately thwarting the assessment process.
The unfortunate aspect of this was that the process of dealing with assessors and consents took a long time. During that time, Mr. Luther was without benefits, even though the Insurer has acknowledged that, but for the assessment issue, he remained entitled to ongoing payments.
While the Arbitrator accepted that Mr. Luther's initial position that no consent was ever needed may not have been helpful to the situation and may, indeed, have been wrong, the situation as it worked out demonstrated a more nuanced approach to the issue, with both verbal consent and written consent of counsel to the process being offered, followed by an offer to negotiate a compromise written consent, one that eventually prevailed.
As stated before, insurers hire and pay for assessors who work under the authority of the insurer when performing section 42 examinations. It is not too much to ask the insurers vet not only the qualifications and the quality of their assessors, but their intake procedures as well, including the signing of consents.
Any written consents requested should be simple, consistent, and in accordance with the purposes of the Schedule. These were not. Waiving liability for assessment injury is not part of the Schedule.
The Arbitrator found that Mr. Luther did not intentionally frustrate the assessments by refusing to sign consents. His refusal to sign the SIMAC consent in particular was both reasonable and prudent.
Even if the Arbitrator is mistaken in the above, it should not have taken Economical from December 2008 until September 2009 to find assessors willing to work with revised or alternative consent forms. In any event, Mr. Luther should not bear the brunt of Economical's lack of oversight of its assessors and their procedures.
Although only dealt with in passing at the hearing, section 37(c) of the Schedule requires an insurer to:
pay all amounts, if any, that were withheld during the period of non-compliance if the insured person provides not later than the 10th business day after the failure or refusal to comply, or as soon as practicable after that day, a reasonable explanation for not complying with subsection 42 (10).
There is no question that Mr. Luther did provide an explanation to Economical within 10 days for his failure to sign the consents. Indeed, the explanation came before the assessments and was repeated thereafter. Economical knew in advance that there was an objection to written consents. That objection was not without foundation. It was based on two Superior Court decisions [Chapell and Tanguay]. As well, the issue as it related to section 42 examinations had never been decided by a court or arbitrator. The Canadian Oxford Dictionary defines "reasonable" as:
1 having sound judgment; moderate; ready to listen to reason. 2 in accordance with reason; not absurd. 3 a within the limits of reasonable; fair; moderate ( a reasonable request). b inexpensive; not extortionate. c fairly good, average (the food here is reasonable).
Reasonable is not necessarily synonymous with right. It should be within the limits of reason and not absurd. While the Arbitrator did not accept that either Chapell v. Marshall Estate or Tanguay v. Brouse govern section 42 examinations, the suggestion is not unreasonable.
While the Arbitrator recognized the efforts that Economical made to accommodate Mr. Luther's wishes with regards to the consent forms, once the assessors had refused to proceed, it should have recognized that the refusal was principled and that a reasonable explanation had been provided for the failure to sign consents.
Under those circumstances, especially when negotiations were ongoing among the parties to work out acceptable ways of dealing with the consent issues, the payments should not have been stopped. For that reason as well, Mr. Luther would have been entitled to have the suspended payments repaid and the payment stream renewed.
For the above reasons the Arbitrator ordered that Economical reimburse those benefits withheld between December 11, 2008 and September 30, 2009, together with accumulated interest thereon.